COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Groulx, 2013 ONCA 690

DATE: 20131113

DOCKET: C54297

Weiler, Watt and Pepall, JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pierre Groulx

Applicant/Appellant

Melanie Webb, for the appellant

Lisa Joyal, for the respondent

Heard: November 4, 2013

On appeal from the conviction entered on April 7, 2011 and the sentence imposed on June 10, 2011 by Justice Robert Pelletier of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant, 43 year old Pierre Groulx, appeals his second degree murder conviction and sentence in the death of his mother, Yolande Groulx.

The Conviction Appeal

[2] All of the grounds of appeal with respect to conviction relate to the trial judge’s charge to the jury. They are:

• The trial judge erred in failing to put the defence of intoxication to the jury where a clear evidentiary foundation existed.

• The trial judge did not sufficiently charge the jury to eliminate the injurious prejudice created by the admission of the prior discreditable conduct.

• The trial judge erred in failing to adequately instruct the jury on the intent required for second degree murder.

• The trial judge erred in failing to instruct the jury that an unlawful act must also be one that is objectively dangerous.

• The trial judge erred in failing to instruct the jury that if they had a reasonable doubt between murder and manslaughter, they should return a verdict of manslaughter.

The Sentence Appeal

[3] In relation to the sentence appeal, the appellant submits that the 14 year period of parole ineligibility imposed is harsh and excessive.

Discussion

[4] We did not call upon the Crown to respond to the appellant’s argument as we were of the opinion that there was no merit to any of the grounds of appeal. At the conclusion of the appeal, we dismissed the appeal with reasons to follow. These are those reasons.

The Conviction Appeal

Lack of instruction on intoxication

[5] It is the duty of the trial judge to put to the jury all defences arising from the evidence, even if not advanced by the defence at trial. See R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13.

[6] In this case, not only was intoxication not advanced as a defence, trial counsel specifically advised the trial judge early in the trial and again during the pre-charge conference that intoxication was not a live issue. The decision of defence counsel not to put forward a defence of intoxication was a tactical one. The appellant’s position was that his mother died as a result of a fall she sustained when he reflexively pushed her away from him due to her body odour and she fell into the faceplate of the kitchen stove’s oven door thereby suffering cuts to her head from the glass which broke. She went to the bathroom to examine herself and asked the appellant to cut some of her hair away so that she could see the injury. The appellant then left the bathroom and went to bed. He heard his mother fall down and called out to her, but she said she was alright. In the morning, he found her dead.

[7] On appeal, counsel for the appellant, who was not his counsel at trial, submits that the trial judge ought to have put the “defence” of intoxication to the jury because there was a sufficient evidentiary foundation for it.

[8] The basis for the appellant’s submission in part arises out of the evidence of a former girlfriend, Ms. Cope. She testified that the appellant became very violent and aggressive when drinking and that he was always under the influence of alcohol when he and the deceased would argue. On a prior occasion the appellant had choked the deceased and did not remember doing so due to his advanced state of intoxication. In addition, the appellant submits that an incoherent voicemail he left for Ms. Cope on the evening of the deceased’s death, which includes an admission of drinking, supports the defence.

[9] On the night the deceased died, it was common ground that the appellant arrived home after drinking eight or nine beers with his friend, Derrick Collins. Still, Mr. Collins testified that he believed that it was safe for the appellant to drive home. The appellant himself gave almost no evidence in his examination in chief about his alcohol consumption. He confirmed on cross-examination that he did not drink excessively that night because he wanted to be clear headed if called in to work the next day. He did not assert to anyone that intoxication was the reason for, or even contributed to his actions. He described in detail his condition at the time of the incident and the events before, during and after the crime.

[10] In the circumstances we disagree that the trial judge was obliged to put the defence of intoxication to the jury. The medical evidence established that the deceased, who weighted only 81 pounds, died from either manual strangulation or from acute traumatic injuries to the brain. There was no evidentiary foundation upon which a jury could properly find that the appellant could not, or did not, comprehend the natural consequences of his conduct.

Instruction on discreditable conduct

[11] The appellant submits that the trial judge erred in not cautioning the jury about the use they could make of evidence of prior misconduct by the appellant. The appellant says it was incumbent on the trial judge to instruct the jury that the evidence of bad character could not to be used to show that the accused would be more likely to have committed the offence in issue.

[12] On the whole, the discreditable conduct did not consist of acts of general bad behaviour, but rather went to the appellant’s animus towards his mother and motive. As such, it was admissible evidence and there was no need for the trial judge to give any such caution. See R. v. Pasqualino (2008), 2008 ONCA 554, 233 CCC (3d) 319 (Ont. C.A.) at paras. 17, and 65-70.

[13] The appellant further submits that the trial judge’s instruction on discreditable conduct was inadequate given the extreme prejudicial effect of the discreditable conduct. The trial judge ought to have repeated his mid-trial instruction to the jury as opposed to simply referencing this earlier instruction and supplementing it in his charge to the jury.

[14] The trial judge’s mid-trial and final instructions to the jury were adequate. The trial judge delivered a lengthy mid-trial instruction about “bad character” evidence and propensity reasoning when the jury first started to hear evidence of prior discreditable conduct. The instruction clearly identified the type of evidence in question and properly explained the permissible and prohibited uses of the evidence. He warned the jury that the appellant was not on trial for his character or past misconduct. The appellant raised no objection to these limiting instructions at trial, despite having the opportunity to comment on them prior to as well as after delivery.

Instruction on the requisite intent for murder

[15] Although the trial judge frequently referred to the requisite intent and recklessness in his charge, the appellant identifies several places in the jury charge where the trial judge did not mention the recklessness component in the definition of s. 229 (a)(ii) of the Criminal Code. The jury would not have been left in any doubt as to the requisite intent for murder: subjective intent to cause bodily harm and subjective foresight of the likelihood of death. The trial judge’s first and final instructions, his decision tree, as well as his instruction respecting the decision tree all tracked the language of s. 229(a)(ii) of the Criminal Code. In nine of the twelve allegedly incorrect instances identified by the appellant, the trial judge said: “means to cause him bodily harm that he knows is likely to cause his death and went ahead anyway.” We note there was no objection from defence counsel to the instruction. Having regard to the medical evidence, this was not a case where a more fulsome explanation of recklessness would have enured to the appellant’s benefit.

[16] In any event, the component of “recklessness” within s. 229(a)(ii) has effectively been rendered “an afterthought” and has assumed a “subservient role”. See R. v. Nygaard 1989 CanLII 6 (SCC), [1989] 2 SCR 1074; R. v. Cooper [1993] 1 SCR 14; and R. v. Portillo, supra.

Lack of instruction that an unlawful act must also be objectively dangerous

[17] The trial judge’s charge on the offence of manslaughter did not instruct the jury that an unlawful act is one that must be objectively dangerous, and that they must be satisfied that a reasonable person would have realized he or she was exposing the deceased to the risk of bodily harm that was neither trivial nor transitory in nature at the time of the unlawful act.

[18] In our opinion, the appellant was not prejudiced by this omission. The trial judge’s charge made clear that the appellant was entitled to an acquittal if he acted out of reflex. The jury rejected the appellant’s evidence that he acted out of reflex and found that he had committed an unlawful act. The medical evidence leads to no other conclusion than that the acts were objectively dangerous and a reasonable person would have realized that these activities would subject the deceased to a risk of bodily harm that was more than trivial or transitory.

Failure to instruct the jury that if they had a reasonable doubt between murder and manslaughter they should return a verdict of manslaughter

[19] Read as a whole, the charge conveyed to the jury that they could only convict the appellant of murder if they were satisfied beyond a reasonable doubt that he had either state of mind required to make the unlawful killing murder. They were also instructed that if they had a reasonable doubt about whether the appellant had a state of mind required to make the unlawful killing murder, they should find the appellant not guilty of murder but guilty of manslaughter. No further instruction was required.

[20] The appeal as to conviction is dismissed.

The Sentence Appeal

[21] The appellant submits that the parole ineligibility order imposed was unduly harsh and excessive for a number of reasons.

[22] First, the appellant had only a minor criminal record. The trial judge erred in imposing a period of parole ineligibility of fourteen years considering that the appellant’s criminal record only included a conviction for impaired driving and flight while pursued by a peace officer. These do not indicate that the appellant has a propensity for violence.

[23] Second, the trial judge failed to ask the appellant if he wished to address the court prior to delivering his sentence. The appellant’s inability to address the court contributed to the trial judge’s determination that he expressed no remorse for his actions.

[24] Third, the trial judge failed to take into consideration the impulsive and spontaneous nature of the attack. The appellant is a good candidate for rehabilitation.

[25] We agree that it was an error for the trial judge to fail to ask the appellant whether he wished to say anything before imposing the sentence. However, no objection was made by trial counsel during the sentencing hearing and before us, the appellant does not seek to introduce as fresh evidence any expression of remorse.

[26] We note that in R. v. McKnight (1999), 135 C.C.C. (3d) 31, this court held that in cases involving brutal second degree murder in a domestic or family context, a 12-15 year parole ineligibility period is generally applied. The period of parole ineligibility is within that range.

[27] Section 745.4 of the Code directs that the court must consider a variety of factors in determining parole ineligibility, one of which is the jury’s recommendation. The majority of the jury recommended 15 years of parole eligibility. The trial judge was entitled to take this into consideration. Even though the trial judge erred in not asking the appellant if he wished to say anything before sentence, the period of parole ineligibility imposed was fit.

[28] While leave to appeal sentence is granted, the appeal as to sentence is dismissed.

[29] Accordingly, the appeal is dismissed.

“K.M. Weiler J.A.”

“David Watt J.A.”

“S.E. Pepall J.A.”